Lobbyists or spies?

In “Lobbyists or spies?” (subscribers only) on today’s Wall Street Journal editorial page, Gabriel Schoenfeld addresses the government’s criminal prosecution of Steven Rosen and Keith Weissman (“the AIPAC case”). Rosen and Weissman are charged with conspiring to violate, and (as to Rosen) aiding and abetting the violation of, section 793 of the espionage laws by receiving and transmitting classified defense information regarding Iran. Pentagon policy analyst Lawrence Franklin was charged with Rosen and Weissman, but Franklin has pled guilty and been sentenced to prison. The case against Rosen and Weissman raises a host of technical legal and constitutional issues that have consumed days of hearings in advance of the trial that is set to begin in January. Selected case files have been collected here.
Schoenfeld’s column is occasioned by Judge Ellis’s most recent ruling in the case, upholding the defendants’ subpoenas of Elliott Abrams, Richard Armitage, Douglas Feith, Dennis Ross, Paul Wolfowitz, Stephen Hadley and Condoleezza Rice:

The idea is to use their testimony to demonstrate that their clients had every reason to believe that what Mr. Franklin told them in conversation — no classified documents ever changed hands in this case — was part and parcel of the normal back-channel method by which the U.S. government sometimes conveys information to the media and/or to allied countries, in this case, to Israel.

According to Judge Ellis, the conspiracy charges based on oral communications alone require proof beyond a reasonable doubt that defendants knew their actions were unlawful and intended either to harm the United States or to benefit a foreign country. Judge Ellis’s long November 15, 2006 opinion setting forth the applicable intent element of the pending charges is accessible here.
Schoenfeld introduces a discussion of the conduct of the New York Times’s behavior that raises issues similar to those of the AIPAC case under the espionage laws:

Back in February 2006 [I think the correct date is December 2005], the New York Times published classified information that compromised the NSA’s terrorist-surveillance program aimed at intercepting the communications of al-Qaeda suspects around the world. While the Justice Department did not prosecute the paper, it was clear that the Times had run afoul of Section 798 of Title 18, which protects the ultra-sensitive category of communications intelligence. Under it, intent is irrelevant; the willful disclosure of classified information is itself the crime. Even observers sympathetic to the Times acknowledge that it broke black-letter law.
The Times repeated its reckless behavior in the spring of 2006, when it compromised another highly sensitive counterterrorism program aimed at tracking the movement of al-Qaeda funds. Here the Times’ disclosure, while damaging and deplorable, was probably not a crime. Because communications intelligence was not involved, the only other applicable statute was the Espionage Act of 1917, the same law under which the two AIPAC men have been charged. That antiquated law, unlike Section 798, contains stringent criminal-intent requirements. However much one might disapprove of what the Times did, it would be nearly impossible to demonstrate that its editors and reporters acted with a criminal state of mind.

It is striking that neither the Times’s original NSA terrorist surveillance story (implicating section 798) nor the Times’s subsequent terrorist finance tracking story (implicating section 793) has given rise to the prosecution of the numerous government offiicals who leaked the information on which the stories were based, or of the Times itself. Each of these stories obviously resulted in more harm to the United States than anything at issue in the AIPAC case (assuming any harm occurred in the AIPAC case at all, which is not evident). Moreover, former NSA employee Russell Tice has identified himself as one of the Times’s sources for the NSA terrorist surveillance story. Tice is at least in part to that story what Larry Franklin is to the AIPAC prosecution, yet Tice is at liberty with no apparent cloud over his head. Can anyone explain what is going on here?
Schoenfeld is the man who is tirelessly connecting the dots over at the aptly named Commentary blog. In an exclusive dispatch that I will post tomorrow morning, Gabe will speculate on the possible connection between the AIPAC case and Michael Scheuer, the former CIA officer who ran the agency